openDemocracyUK: Opinion

Threat to our digital rights revealed in US-UK trade talks leak

Leaked records of US-UK trade negotiations suggest the US is targeting our digital rights – and the UK seems alarmingly willing to play ball.

Laura Bannister Ruth Bergan
2 December 2019, 12.23pm
Yuri Samoilov/Flickr, CC 2.0

Leaked documents from trade talks between the UK and US make it clear that our online interactions and digital products will be priorities for the negotiations. The UK grandly declares, “We do not want to just go back to existing [digital] trade texts, no matter how ambitious – we want to go beyond.”

Digital rights rose up the public agenda when it was revealed that Cambridge Analytica had harvested 50 million Facebook profiles and used them to influence US voters. What happens to our online profiles, browsing history and data collected by the NHS are hot topics.

What is worrying about these trade discussions is that they appear to be trying to close down our options for regulation.

The leaked documents suggest that there could be no limitations on the export of data, potentially applying even in sensitive areas such as health data. The US “welcomed that data flows were a UK priority’ but they raised issues about the UK’s strict data protection policy, stating that they ‘had some specific concerns with how GDPR [the EU’s General Data Protection Law, which came into force last year] is being implemented”. Any planned changes to how our current data regulations operate have implications for privacy but also for the affordability of a high-quality NHS, as the service could be obliged to buy back medical technologies and expertise from overseas at high cost, even where these were created using freely exported NHS data.

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The US demands that no tax should be paid on cross-border online transactions. They also explicitly resist obligations to reveal the source code and algorithms within products such as cars, MRI scanners or the software increasingly being used in recruitment, healthcare and benefits decisions, stating, “On measures preventing the forced transfer of source code, we should look to include consideration of algorithms and trade secrets.” This has already shown to be seriously problematic in a case where Volkswagen was heavily fined for using software to circumvent emissions testing, showing a result that was lower than occurs in normal driving.

Our ability to keep children safe online could also be at risk. The UK has recently implemented vital protections such as age-verification for pornography websites, but the US has nothing equivalent in place. In the leaked documents, the US says that, "Safety and consumer rights was an area where there was a lot to discuss due to the differences between systems." Shockingly, the UK seemed willing to be flexible about regulations in this area, replying, "In terms of specific measures under this banner, we are approaching this openly."

The US trade deal is the wrong place to try and address these complex digital economy issues. Trade deals simply have no mandate to consider wider issues like child safety, workers rights or environmental protection, and experience shows that they are not good vehicles for pursuing these goals. The principal motivation for all the rules in a trade deal has to be (according to WTO rules) the removal of barriers to trade. The only consideration given to wider social issues in trade deals is in unenforceable sections such as the preamble or a sustainable development chapter, and even these sections consider social issues mainly in terms of their impact on trade.

The winners from these new digital trade rules will be platform companies like Google, Apple and Amazon, whose huge global reach allows them to dominate local markets and drive out competitors. Digital platforms have created real social benefits in many areas, but they have also generated new problems including tax avoidance, poor quality jobs, and misuse of our private data. Digital platforms have taken advantage of the relative lawlessness of the digital world to become the world’s biggest companies, and they are keen to ensure their advantages are preserved.

Four major platforms - Google, Apple, Facebook and Amazon - have doubled their lobbying spend in the last three years, now shelling out $55 million in the US on an army of lobbyists who aim to influence government policy. Some have also targeted the EU: Google’s EU lobbying spend was over €8 million, up tenfold since 2011. This implies a serious determination to ensure that their agenda is prioritised in the many trade negotiations currently on the table.

There are many losers from this system. The intervention of powerful online companies in elections has serious implications for democracy. The NHS and other public services risk losing control of vital data, forcing them to buy it back at huge costs in the form of ‘insights’ from private companies.

Workers in the platform economy have fared especially badly, often being paid as little as $3.00 per hour. Uber has even been accused of treating drivers like “sweated labour”. Stamping out these kinds of abuses is no simple task and will require the kind of regulation that these US trade talks are trying to prevent.

To create the kind of digital economy we want, we need to retain the ability to regulate so that it works for the benefit of all, not just a handful of powerful companies. A trade deal with the US is the wrong place to work out how we want to manage digital transactions, data and software, as it just cannot provide answers that work for society as a whole.

These early trade talks show that discussions are moving in an extremely worrying direction. It is vital that the UK change tack, before we sign up for a trade deal that could prevent future progress.

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